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Feb 7, 2014 - By Steven R. Peck

Interpretations vary on the EPA ruling, as well they might

Opinions, conclusions and misinformation are permeating the atmosphere of comment and discussion following the pronouncement a couple of months ago by the Environmental Protection Agency that Riverton is part of the Wind River Indian Reservation.

Sparked by misunderstanding, inflamed by an EPA action that went beyond its expected scope, and accelerated, naturally, by the misinformation superhighway of the Internet, it's hard to know what's what about this case.

That is exactly why it is important for the State of Wyoming to push the federal government to re-examine the EPA ruling, why it's important for local governments -- including the Northern Arapaho and Eastern Shoshone -- to stand pat for the time being, and why, eventually, it may take a ruling of the U.S. Supreme Court to settle once and for all whether the act of Congress more than 100 years ago which removed the Riverton townsite from the reservation actually did remove the Riverton townsite from the reservation.

From households to the U.S. government, new rules always run the risk of discrepancy between intent and effect. That could be what has happened since the EPA decided in December that the reservation is entitled to be treated as a separate state when it comes to monitoring and maintaining air quality. Perhaps simply as a routine matter, the EPA said the regulatory area being granted to the tribes on the reservation applies 50 miles from the reservation border on all sides. This buffer zone would include Riverton and other non-reservation areas. Further, said the EPA, the buffer zone shouldn't be any problem because the 1905 Act of Congress didn't really "diminish" the reservation, meaning the land opened to white settlement still is "Indian Country," to use the legal term applied by the courts to define reservation land and spheres of jurisdiction.

One gets the feeling that the EPA might not have realized the can of worms it was opening with that last part. Was the ruling the EPA made on air quality monitoring intended to redraw the boundaries of the reservation? In the eyes of some, that's exactly what it was intended to do. In the eyes of others, the 50-mile buffer is simply a formality to ensure that a polluter setting up shop on the edge of the reservation didn't have carte blanche to affect air quality on the reservation with no input from the tribes.

Some people think the ruling is an outrageous overreach of both scope and jurisdiction by a federal agency that is operating recklessly far outside its legal authority and intended influence.

Likewise, the motivations of the affected entities aren't necessarily the same. For some, it means that Riverton municipal authority and governmental functions will have to be shared with the tribes. To others, it creates deep uncertainty about where state authority applies and where it doesn't. If the reservation is, in the eyes of the EPA, a separate state whose authority extends 50 miles past the understood borders, does that mean, for example, that Colorado air quality standards apply 50 miles into Wyoming? If it applies to one "state," then why not another?

The tribal officials who contacted Riverton Mayor Ron Warpness the day after the EPA action was announced, wanting to begin planning for joint jurisdiction, not only jumped the gun but also tipped their hand. Clearly, some are intending for the EPA ruling on air quality monitoring to stand as a re-bordering of the reservation. Certainly that is how it is being portrayed by some tribal advocates with the e-mailing lists of all the major media in the state.

But it also is premature to read more into the EPA order than is really there. It is the launch pad for more legal action, with an uncertain outcome. There are many in Wyoming who welcome it in a sense, believing it can be the foundation for a legal challenge that will, in the words of one frequent visitor to the Ranger newsroom, "slap the EPA back into its box."

Short of that, it's not unreasonable to expect the courts to apply the ruling only to the narrow area of air quality monitoring. There might end up being no more to it than that.

Recalling the original question of intent versus effect, the only unambiguous intent of the EPA study and subsequent action was to define who gets a voice in air quality policy on the reservation. Everything else is up for discussion, disagreement and, very likely, future legal determination.

No one relishes long court battles, but there probably needs to be one in this case. Right or wrong, the issues raised are too important to hang on a regulatory agency's administrative ruling.